Place of origin

Davut Yildiz and MAG Lighting and Mustafa Goren 2012 HRTO 2232

Is it discriminatory to ask where a person is from during an interview?

Facts

After a telephone interview for a job as an electrician at MAG lighting, Davut Yildiz was asked to come to the worksite the following day where the foreman gave him a number of tasks to complete. Mr. Yildiz believed that he had been hired, whereas the company was actually evaluating him and another candidate to evaluate their competencies, their ability to take orders and their efficiency. At one point in the day, Mustafa Goren, the owner of the company, approached Mr. Yildiz and asked him where he was from . Both the complainant and the personal respondent were Turkish and spoke Turkish during the phone interview. The complainant was Kurdish and was afraid to reveal his origins to the respondent for fear he would be discriminated against as was his experience in Turkey. He lied, telling Goren that he was from Kayseri, a part of Turkey where a mix of Turkish and Kurdish persons cohabitate. This response surprised Goren who commented that it did not seem, from his appearance (according to the evidence of Yildiz) or his accent (according to the evidence of Goren) that Yidiz was from that area of Turkey. The next day Mr. Yildiz called Mr. Goren to ask when he should next report to work. Mr. Goren told him that he had not been hired. Mr Yildiz was deeply hurt and assumed that he had been discriminated against on the basis of place of origin. As he was used to such discrimination, he was able to cope with the injury to his dignity and self-worth and continued his search for employment. He got a job several days later.

At the hearing, Mr Goren explained that the practice of evaluating candidates at work before making a final employment decision was current in the industry and certainly at MAG Lighting. He explained, and his foreman supported this evidence, that Mr. Yildez was not hired because he was not the best candidate for the job; the other candidate, who had less experience, worked more quickly and responded better to orders from the foreman. As for asking Mr. Yildiz where is was from, Mr Goren had three arguments against a finding of discrimination

The question "where are your from?" was not made during a critical part of the hiring process

The question does not "directly or indirectly classify or indicate qualifications by a prohibited ground of discrimination" (para 19)

Even if the question does directly or indirectly classify or indicate qualifications by a prohibited ground of discrimination, it is justified, in this case, by a non-discriminatory explanation: it is within the cultural norms of Turkish persons to ask such questions of one another.

Issues

Was the complainant not hired because of his ethnic background?

Do the three arguments put forth by the respondent mitigate against a finding of discrimination?

Is it discriminatory to ask a person where they come from during a job interview?

Decisions

No

No

Yes

Reasons

The Adjudicator found the testimony of the foreman to be credible. The complainant was not hired because his performance was inferior to that of the other job candidate. Ethnic origin had nothing to do with the decision. In fact, there is already a Kurdish person employed by MAG Lighting.

The Adjudicator determined that the question "where are you from" was asked during a critical moment of the interview, the evaluation day, the very day that determined whether or not the candidate would be chosen to work for the company. Moreover the question "Where are you from" clearly invokes the prohibited ground of "place of origin". Finally, the cultural explanation provided by the respondent (it is normal for Turkish people to inquire about each other's place of origin) is not supported by a line of cases which hold that "for s. 23 (2) to be violated, there need not be any intention to discriminate, nor is there any requirement that the information obtained by the improper questions result in actual discrimination (Lannin v Ontario (1993( 26 CHRR D/58 (Ont Bd of Inquiry (para 55).

The adjudicator noted that "In most hiring circumstances more candidates will be unsuccessful than successful in obtaining the position. those who are not hired will rarely have an opportunity to discover why it was they were unsuccessful; however, they should be able to take comfort in the fact that the law of the Province of Ontario contains protections to help ensure that hiring decisions are not made based in any way on prohibited grounds. by preventing prospective employers from asking any questions that "directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination:", regardless of the motivation for the asking of the question by the employer, all job candidates will have some degree of comfort that an employer's decision to hire was based on merit and not prejudice. (9)